Taylor v. The Prudential Insurance Company of America et al

Filing 80

Memorandum Opinion and Order granting defendant's 67 motion for summary judgment, denying plaintiff's 69 MOTION for Summary Judgment , MOTION for Summary Judgment and to Vacate Termination and Denial of LTD Benefits. A separate judgment shall follow. Signed by District Judge Tom S. Lee on 7/11/17 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
THERESA A. TAYLOR

PLAINTIFF

VS.

CIVIL ACTION NO. 3:12CV702TSL-RHW

THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiff
Theresa A. Taylor for summary judgment and to vacate termination
and denial of long term disability benefits and on the crossmotion of defendant The Prudential Insurance Company of America
(Prudential) for summary judgment.
briefed by the parties.

Both motions have been fully

The court, having considered the

memoranda of authorities submitted by the parties and having
carefully reviewed the administrative record, concludes that
Prudential is entitled to summary judgment.

Accordingly,

Prudential’s motion will be granted and plaintiff’s motion will be
denied.
Facts
Prior to February 2, 2011, when she stopped working due to
symptoms associated with fibromyalgia, sleep apnea and worsening
of spinal disease, Theresa Taylor was employed by the Wm. Wrigley
Jr. Company as a Territorial Sales Manager.

Through her

employment, Taylor was a participant in an employee welfare

benefit plan that provided disability coverage.
administered by Prudential.

The Plan was

Under the terms of the Plan’s short-

term disability coverage, a claimant is entitled to receive
benefits for a period of up to fifty-two weeks if she is “unable
to perform the material and substantial duties of your regular
occupation due to your sickness or injury....”

The Plan’s long-

term disability coverage provides for continued payment of
benefits for up to twelve months to a participant who remains
unable to perform the material and substantial duties of her
regular occupation.

After twelve months, she is considered

disabled and entitled to continued long-term disability benefits
if she is unable to perform the duties of any “gainful occupation
for which [she is] reasonably fitted by education, training or
experience.”

“Gainful occupation” is defined as “an occupation,

including self-employment, that is or can be expected to provide
you with an income equal to at least 60% of your indexed monthly
earnings within 12 months of your return to work.”
After she stopped work, Taylor submitted a claim for
disability benefits to Prudential.

Initially, on March 11, 2011,

Prudential denied her claim, citing a lack of objective medical
evidence to support a finding that she met the Plan definition of
disabled.

After Taylor appealed, Prudential found she was

entitled to receive short-term disability benefits for a period of
thirty days, through March 3, 2011, for diagnostic testing,
2

treatment and evaluation by specialists, and for physical therapy
due to an exacerbation of chronic low back pain.
claim for additional benefits.

It denied her

Following unsuccessful

administrative appeals of Prudential’s decision,1 Taylor filed this
action on October 15, 2012, alleging she was wrongly denied shortterm and long-term disability benefits under the Plan.
By memorandum opinion and order entered July 1, 2013, the
court found that Taylor had failed to exhaust the administrative
process on her claim for long-term disability benefits and so
stayed the case so she could pursue her claim for long-term
disability benefits through the administrative process.
In the meantime, on February 22, 2013, Taylor was awarded
Social Security disability benefits, retroactive to February 11,
2011.

Thereafter, on July 22, 2013, Taylor filed her formal claim

for long-term disability benefits.

As support for her claim that

she was disabled from performing the duties of her job at Wrigley,
Taylor noted her diagnoses of multiple illnesses and conditions

1

On July 26, 2011, Prudential upheld the decision to
terminate STD benefits effective March 3, 2011, finding there was
“no severity of symptoms that would support any restrictions or
limitations from your regular occupation” and “no medical to
support your inability to perform the material and substantial
duties of your regular occupation....” On November 3 2011,
Prudential denied Taylor’s second appeal, finding there was “no
medical to support an impairment that would preclude you from
performing your light occupation due to fibromyalgia or your back
condition.”
3

which included fibromyalgia syndrome; shoulder pain and calcific
tendinitis; history of C5-C6 anterior cervical discectomy and
fusion and history of lumbar surgery times two at the L4-5 level
on the left; low back pain with radiation to the left lower limb;
irritable bowel syndrome; and sleep apnea.

She cited medical

records from her various medical providers, including her primary
care provider, Dr. Massie Headley; her physical medicine and
rehabilitation specialist, Dr. Rahul Vohra; and her
rheumatologist, Dr. James Hensarling.

In addition, she provided

her award of Social Security disability benefits and a June 2011
Functional Capacity Evaluation (FCE) which indicated she was
“capable of performing physical work at a Light level” but should
not lift or carry weight greater than 25 pounds and 15 pounds
overhead, and would do well to limit “sitting, twisting, kneeling,
elevated work, and forward bending work to occasionally.”
Upon receipt of Taylor’s claim, Prudential had an in-house
physician, Dr. Jonathan Mittelman, review her file.

Based on his

review, Dr. Mittelman agreed with the conclusions of the FCE that
she could work in a light capacity.

With regard to Taylor’s back

pain, Dr. Mittelman noted that she had a remote history of a
cervical fusion in 2008 and a lumbar surgery in 2000 and 2007; and
though she had complaints of pain, she had been able to work
following those surgeries.

He noted the limitations identified in

the FCE were consistent with her past surgical history.
4

He

further acknowledged that the clinical data was consistent with
her diagnosis of fibromyalgia.

He explained that fibromyalgia is

a chronic condition and is not progressive.

“It does not cause

damage to any joints, muscles, or organs and with
multidisciplinary treatment, including life style management (good
sleep habits, regular exercise and stretching, ensuring ergonomic
work activity, attention to good nutrition) most people with this
condition would be expected to maintain the ability to perform
gainful work activity on a reliable basis.”

He observed that

Taylor had been “largely stable in her complaints over the course
of 2013,” and he found “no reason to alter the limitations
determined in her 2011.”
On February 5, 2014, Prudential notified Taylor that her
claim for long-term disability benefits was denied.

Prudential

advised that based on the limitations identified in the FCE and
Dr. Mittelman’s report, Taylor had the capacity for light work;
that her job at Wrigley was in the light category; and therefore,
she did not meet the policy definition of disabled.

Taylor

appealed this decision, and on July 14, 2013, Prudential reversed
its initial decision and awarded Taylor long-term disability
benefits through February 13, 2011.

Prudential found that

Taylor’s job at Wrigley was more accurately classified as medium
rather than light, and that, given the findings of the FCE, she
met the policy’s “regular occupation” definition of disability
5

applicable for the initial twelve months.

Prudential denied

further benefits from and after February 16, 2013, but advised
that it was continuing its review of Taylor’s claim to determine
whether she was eligible for long-term disability benefits beyond
the initial twelve-month period, i.e., under the “gainful
occupation” standard.
As part of that review, Prudential requested that Taylor
submit to an Independent Medical Examination (IME).

Taylor

agreed, and on October 31, 2014, was examined by Dr. Philip J.
Blount.

Following the examination, and after spending

approximately two hours reviewing Taylor’s medical records, Dr.
Blount issued his report detailing her medical history and
diagnoses, the results of his examination and his findings and
opinions.

As part of the evaluation, Dr. Blount was asked to

identify appropriate restrictions and/or limitations in view of
her functional limitations.

He responded,

Ms. Taylor’s presentation is completely consistent with
fibromyalgia syndrome. I would offer no formal
restrictions and limitations based on this.
The examinee has been followed chronically for greater
than ten years by appropriate treating physicians.
Given the chronicity and complexity, two ... FCEs have
been performed and limitations have been provided by
outside treating physicians.
Asked whether her “self-reported level of chronic pain” was
“supported and/or consistent with the results of diagnostic
testing,” Dr. Blount responded that her examination was
6

“completely consistent with a fibromyalgia syndrome” and that
“[f]ibromyalgia syndrome cannot be objectively measured. Pain
cannot be objectively measured.”

He opined that while Taylor had

a cervical spine procedure previously, this condition “was stable
and not the cause of her chronic symptoms.”

She also had a

history of two prior lumbar procedures, “but her presentation
today was not indicative of any active radicuolopathy,” which, he
noted, was “supported by her negative electrodiagnostic evaluation
performed by her treating physician and her MRI findings of
stability.”

Thus, he considered that the primary condition

causing her symptoms was fibromyalgia.

Regarding that condition,

he wrote:
Fibromyalgia syndrome, in my practice, does not have any
formal limitations or restrictions, as tolerance for
symptoms are the limiting factor.
I did spend over two hours reviewing chronic notes
dating more than ten years that have included
evaluations and appropriate conservative management from
her primary care, surgery specialists, physical medicine
and rehabilitation specialists, and rheumatologists. At
the collective opinion of these providers, FCEs were
recommended, and the result of this was light-duty
status. ...
Although it is true that fibromyalgia syndrome is nonsinister, with age and chronicity, there is a normal
physiologic decline in abilities. ...
I agree with the treating physician that the examinee
should not be required to climb ladders, ropes, and
scaffolds given her balance issues I observed today and
her medications that she is currently taking. I do
feel, however, that she should be able to work as
indicated by her FCE.... Again, with her presentation
7

today, primarily with fibromyalgia syndrome, the
tolerance for symptoms would be her own limiting factor,
and I would certainly allow her to do this.
In conclusion, I respect the treating physicians with
their request of light-duty status, and this is based on
two FCEs and my review of chronic records spanning over
ten years by reputable and reliable physicians that I
believe have provided good care.
On November 24, 2014, after receiving Dr. Blount’s report,
Prudential requested a vocational assessment to identify
alternative occupations which would provide earnings of at least
$15.63 per hour2 for which Taylor would be qualified, given her
education, training, and work experience and taking into
consideration the restrictions identified in Dr. Blount’s IME and
the June 2011 FCE.

A Prudential Vocational Specialist, Steve

Lambert, undertook this assessment, and reported that, taking into
account the various restrictions and limitations identified in Dr.
Blount’s IME and the FCE and Taylor’s transferrable skills, he had
identified three alternative sedentary occupations that would
provide the required gainful wage:

Inside Sales Representative

(hourly wage of $21.33), E-Commerce Sales Representative (hourly
wage of $21.51), and Customer Center Representative (hourly
wage of $17.78).

Accordingly, by letter dated December 19, 2014,

Prudential denied Taylor’s claim for long-term disability benefits

2

Prudential arrived at the $15.63 per hour figure by
converting Taylor’s annual salary at Wrigley to an equivalent
hourly wage.
8

beyond February 16, 2013.

In doing so, it noted that it had taken

into consideration the fact that she was approved for Social
Security disability benefits but explained that whereas “the [SSA]
must make their determinations based on the information available
to them at the time of their decision completed on February 22,
2013, as well as their rules and guidelines,” Prudential had made
its decision “based on the LTD policy under which Ms. Taylor is
insured, a review of more recent treatment records, and the
opinions of an IME physician.”
Taylor appealed Prudential’s decision, arguing that
Prudential had given insufficient weight and consideration to the
SSA’s determination; that the IME was unduly focused on the
fibromyalgia and failed to consider the multiplicity of illnesses
and conditions from which she suffers; that the vocational/
employability assessment was flawed, as she was a salaried, not
hourly, employee; and that restrictions and limitations cited by
Prudential in its decision were incorrectly stated and
contradicted restrictions identified by Dr. Vohra.
Upon receipt of her appeal, Prudential submitted Taylor’s
records (including her medical records, the 2011 FCE report, the
Social Security determination and Dr. Blount’s IME report) for
review by an independent physician, Dr. Lucien Parrillo.

Dr.

Parrillo concluded that “[b]ased on the documentation reviewed,
the claimant does not have any medically necessary restrictions or
9

limitations from any condition or combination of conditions from
02/17/2013 forward....”

He opined:

The claimant does not have any degree of physical
impairment that is supported by the available medical
evidence. There is no diagnostic data that would
substantiate any level of physical incapacity, nor the
medical necessity for functional restrictions/
limitations in the workplace. While it is evident this
claimant has been diagnosed/treated for several chronic
medical conditions ... the physically debilitating
effects of these diagnoses has not been objectively
established.
Accordingly, Prudential upheld its denial decision and so notified
Taylor by letter dated August 20, 2015.

Prudential rejected

Taylor’s claim that it had failed to give adequate consideration
to the Social Security disability determination, again explaining
that its decision was based on information the SSA did not have at
the time of its decision.

It denied that it had failed to

consider her “multiplicity of symptoms,” noting that Dr. Blount’s
IME had been thorough and considered all of her diagnoses and
symptoms.

As to her assertion that Prudential had wrongly

considered hourly rather than salaried positions in identifying
alternative jobs, Prudential responded that this approach was not
inconsistent with the Plan’s definition of “gainful occupation,”
which did not “state that if one is salar[ied], a salar[ied]
occupation need be identified or vice versa.”
Taylor again appealed, making the same arguments as before.
In connection with her appeal, Taylor provided a vocational

10

assessment performed by Dr. Larry Stokes in which he concluded
that she was “not competitively employable in the labor market,
nor could she perform in a gainful occupation and achieve 60% of
her monthly salary, which would equate to $2,710.00 per month.
Her functional ability does not translate into an ability to
maintain gainful employment.”
limitations,

In identifying her functional

Dr. Stokes relied almost exclusively on an August

12, 2012 Medical Source Statement completed by one of plaintiff’s
treating physicians, Dr. Rahul Vohra, in connection with Taylor’s
claim for Social Security disability benefits.

In that Medical

Source Statement, Dr. Vohra indicated that Taylor could sit about
four hours per day and stand/walk less than two hours per day.
Dr. Stokes noted that these restrictions would place her “at a
part-time position of a maximum of six hours a day.”

Further, Dr.

Vohra’s Medical Source Statement indicated she could lift 10
pounds “occasionally,”3 which Dr. Stokes noted “would also place

3

Social Security regulations state:
Sedentary work involves lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). To determine whether an individual has
the ability to perform the full range of sedentary work from an
exertional standpoint, Program Policy Statement (PPS) 101
elaborates:
“Occasionally” means occurring from very little up to
11

Ms. Taylor at a less than full-time sedentary capacity of work.”
As Dr. Vohra also indicated in his Medical Source Statement that
Taylor would have cognitive interference with work “occasionally”,
Dr. Stokes concluded this meant she would have “cognitive
interference limiting her to approximately 5.5 hours per day.”
And, as Dr. Vohra also reported in his Medical Source Statement
that Taylor would have significant limitations doing repetitive
reaching, handling or fingering, and could only use her hands,
fingers and arms for reaching, fine manipulations and grasping,
turning or twisting objects only 25% (or about two hours) of the
day, Dr. Stokes opined there were “no occupations in the labor
market” she could perform.
In response to Taylor’s appeal, Prudential requested another
independent records review, which was done by r. Philip J. Marion.
Dr. Marion issued a report on August 2, 2016 finding there
“remains no impairment that translates into occupational
restrictions and/or limitations for the time period under review.”
In addition to requesting the file review, Prudential also

one-third of the time. Since being on one's feet is
required “occasionally” at the sedentary level of
exertion, periods of standing or walking should
generally total no more than about 2 hours of an 8-hour
workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.
Titles II & XVI: Determining Capability to do Other Work--The
Medical-Vocational Rules of Appendix 2, SSR 83-10 (PPS-101), 1983
WL 31251, at *5 (S.S.A. Jan. 1, 1983).
12

requested that its Vocational Specialist review Dr. Stokes’
report.

Upon review, he advised that the jobs he had previously

identified remained valid alternative occupations based on the
report of the IME.
On August 11, 2016, Prudential again denied Taylor’s appeal,
stating it was “not disputing her diagnoses,” but found that “the
clinical documentation does not support her inability to perform
any gainful occupation.”

In so finding, Prudential rejected Dr.

Stokes’ conclusions, stating:
[Dr. Stokes’ report] is his assessment based on the
opinions of her treating providers and not based on the
diagnostic test findings, examination findings and
clinical documentation in her claim file. She is
reporting generalized complaints for which her doctors
are advocating for her, but their clinical documentation
does not support her occupational functioning is
impacted in total.
Upon this final denial of her claim, Taylor returned to this court
to pursue her claim for wrongful termination and denial of longterm disability benefits.
Standard of Review
A person who has been denied benefits under an employee
benefit plan governed by ERISA may challenge that denial in
federal court.

See 29 U.S.C. § 1132(a)(1)(B).

Review of a plan

administrator’s factual findings is abuse of discretion.

Pettway

v. Prudential Ins. Co. of Am., No. CIV. A. 508CV283KSMTP, 2009 WL
2973393, at *6 (S.D. Miss. Sept. 11, 2009).

13

Review of the

administrator’s interpretation of plan terms and provisions is de
novo, unless the plan grants the administrator discretionary
authority to determine eligibility for benefits and to construe
the terms of the plan, in which case review is for abuse of
discretion.

Menchaca v. CNA Grp. Life Assur. Co., 331 F. App'x

298, 302 (5th Cir. 2009) (citing Corry v. Liberty Life Assurance
Co. of Boston, 499 F.3d 389, 397 (5th Cir. 2007)).

The Plan at

issue gives Prudential such discretionary authority.

Accordingly,

the court’s review of Prudential’s decision is for abuse of
discretion.
An ERISA claimant bears the burden to show that the
administrator abused its discretion.

George v. Reliance Standard

Life Ins. Co., 776 F.3d 349, 352-53 (5th Cir. 2015).

“Under the

abuse of discretion standard, the plan administrator's decision
will prevail if it ‘is supported by substantial evidence and is
not arbitrary and capricious.’”

Davis v.

Aetna Life Ins. Co.,

No. 16-10895, 2017 WL 2589409, at *5 (5th Cir. June 14, 2017)
(quoting Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d
262, 273 (5th Cir. 2005)).

“A decision is arbitrary and

capricious only if it is made without a rational connection
between the known facts and the decision or between the found
facts and the decision.”

Truitt v. Unum Life Ins. Co. of America,

729 F.3d 497, 508 (5th Cir. 2013).

“Substantial evidence is more

than a scintilla, less than a preponderance, and is such relevant
14

evidence as a reasonable mind might accept as adequate to support
a conclusion.”

Corry, 499 F.3d at 398

and citation omitted).

(internal quotation marks

The court’s “review of the administrator's

decision need not be particularly complex or technical; it need
only assure that the administrator's decision fall somewhere on a
continuum of reasonableness—even if on the low end.”
(internal quotation marks and citation omitted).

Id.

The law does not

require the court “to rule in favor of an ERISA plaintiff merely
because he has supported his claim with substantial evidence, or
even with a preponderance.

If the plan fiduciary's decision is

supported by substantial evidence and is not arbitrary and
capricious, it must prevail.”

Ellis v. Liberty Life Assurance Co.

of Boston, 394 F.3d 262, 273 (5th Cir. 2004).
In determining whether there was an abuse of discretion, the
court must also consider whether the plan administrator had a
conflict of interest.

Davis, 2017 WL 2589409, at *5.

Where the

plan administrator “both decides whether an employee is eligible
for benefits and pays benefits out of its own pocket,” it has a
conflict of interest “which a reviewing court should consider as a
factor in determining whether the plan administrator has abused
its discretion in denying benefits.”

Metro. Life Ins. Co. v.

Glenn, 554 U.S. 105, 108, 128 S. Ct. 2343, 2346, 171 L. Ed. 2d 299
(2008).

“[A] conflict of interest does not change the standard of

review but affects only the amount of deference given under an
15

abuse of discretion standard of review.”

Green v. Life Ins. Co.

of N. Am., 754 F.3d 324, 330 n.4 (5th Cir. 2014).

The conflict of

interest is ‘but one factor among many that a reviewing judge must
take into account,’” Davis, 2017 WL 2589409, at *5 (quoting Glenn,
554 U.S. at 116); and its significance “will depend upon the
circumstances of the case.”

Glenn, 128 S. Ct. at 2346 (citing

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.
Ct. 948, 103 L. Ed. 2d 80 (1989)):
[A] conflict of interest ... should prove more important
(perhaps of great importance) where circumstances
suggest a higher likelihood that it affected the
benefits decision. [Glenn, 554 U.S.] at 117. [A]
reviewing court may give more weight to a conflict of
interest [] where the circumstances surrounding the plan
administrator's decision suggest “procedural
unreasonableness” – that is, where the “method by which
[the plan administrator] made the decision was
unreasonable.” Schexnayder v. Hartford Life & Accident
Ins. Co., 600 F.3d 465, 469-71 (5th Cir. 2010) (quoting
Glenn, 554 U.S. at 118).4

4

Proof of a history of biased claims administration would
suggest “a higher likelihood that it affected the benefits
decision.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117-18,
128 S. Ct. 2343, 2351, 171 L. Ed. 2d 299 (2008). Plaintiff has
not claimed that Prudential has a history of biased claims
administration. Conversely, a conflict of interest is less
important, and perhaps of no importance, “where the administrator
has taken active steps to reduce potential bias and to promote
accuracy....” Glenn, 554 U.S. at 117-18.
Here, there is no
evidence regarding Prudential’s efforts to ensure accurate claims
assessment. However, there is no requirement that an insurer take
affirmative steps to reduce its potential bias, and its failure to
do so does not justify giving its conflict greater weight unless
the circumstances otherwise suggest procedural unreasonableness
that hints of bias. Hagen v. Aetna Ins. Co., 808 F.3d 1022, 1030
(5th Cir. 2015) (citing Schexnayder, 600 F.3d at 470-71).
16

Davis, 2017 WL 2589409, at *5.

Procedural unreasonableness may be

indicated where the administrator “emphasized a certain medical
report that favored a denial of benefits, ... deemphasized certain
other reports that suggested a contrary conclusion,” or “failed to
provide its independent vocational and medical experts with all of
the relevant evidence.”

Glenn, 554 U.S. 105, 118, 128 S. Ct.

2343, 2352, 171 L. Ed. 2d 299 (2008).

It may also be found where

the administrator has ignored or refused to review relevant
evidence in the administrative record.
808 F.3d 1022, 1028 (5th Cir. 2015).

Hagen v. Aetna Ins. Co.,

An administrator’s

“[f]ailure to address a contrary SSA award can suggest ‘procedural
unreasonableness’ in a plan administrator's decision” which is
“important in its own right and ... ‘justifie[s] the court in
giving more weight to the conflict.’”

Schexnayder, 600 F.3d at

469-71 (quoting Glenn, 554 U.S. at 2352).

See Glenn v. MetLife

(Glenn I), 461 F.3d 660, 669 (6th Cir. 2006), aff'd, Glenn, 554
U.S. 105 (“[A]n ERISA plan administrator's failure to address the
Social Security Administration's finding that the claimant was
‘totally disabled’ is yet another factor that can render the
denial of further long-term disability benefits arbitrary and
capricious.”).
Here, Taylor points to the conflict of interest inherent in
Prudential’s acting as both the plan administrator and insurer of
benefits; but she does not specifically argue that Prudential’s
17

administration of her claim was procedurally unreasonable.
However, one or more of the bases on which she challenges
Prudential’s decision, if established, could tend to suggest
procedural unreasonableness.

Taylor offers the following reasons

Prudential’s decision to deny her long-term disability payments
was unreasonable and hence an abuse of discretion:
(1) Prudential did not afford due consideration to the findings
and conclusions of the Social Security Administration that she
suffers severe impairments which render her totally and
permanently disabled from any gainful employment; (2) Prudential’s
reliance on Dr. Blount’s IME to support its denial decision was
“misguided”; (3) Prudential’s decision is based on medical records
reviews obtained by Prudential which misconstrue and/or
mischaracterize the treatment records of her treating physicians;
and (3) Prudential’s decision is based on a vocational assessment
that is flawed.

The court evaluates Taylor’s claims both for

procedural unreasonableness and abuse of discretion.

Analysis
In February 2013, the Social Security Administration (SSA)
found that Taylor was disabled under applicable Social Security
standards.

The Social Security Administrative Law Judge (ALJ)

found she had severe impairments, including fibromyalgia,
18

generalized osteoarthritis, lumbar degenerative disc disease with
radiculopathy, sacroilliac syndrome/joint dysfunction, activityrelated back pain, mechanical right shoulder pain (with continued
impingement), irritable bowl syndrome, chronic fatigue syndrome,
right elbow pain with lateral epicondylitis and neck pain.

He

concluded that the combination of these impairments significantly
limited her ability to perform basic work activities.

In so

finding, the ALJ accepted the conclusions offered by Dr. Vohra in
his August 2012 Medical Source Statement regarding Taylor’s
residual functional capacity, finding they were “supported by
objective medical findings and ... consistent with his documented
treating progress notes in the record” and hence entitled to be
given controlling weight as he was her treating physician.

The

ALJ concluded that Taylor retained the residual functional
capacity for sedentary work, subject to the limitations noted in
the Medical Source Statement, including lift/carry ten pounds
occasionally; stand or walk less than two hours in an eight-hour
day; sit for four hours in an eight-hour day with a need for
shifting positions at will; reach, handle or finger only
occasionally; and balance, bend, stoop, kneel, crawl, squat,
and/or twist rarely.

Given her residual functional capacity for

limited sedentary work, the ALJ found that Taylor could not
perform her past relevant work and that considering her age,
education, work experience and residual functional capacity, there
19

were no jobs that exist in significant numbers in the national
economy that she could perform.
Taylor contends that Prudential abused its discretion by
ignoring SSA’s finding that she was totally disabled “in favor of
the opinions of their own paid doctors’ conclusory opinions that
[she] is not disabled.”

“[W]hile an ERISA ... administrator might

find a social security disability determination relevant or
persuasive, the plan administrator is not bound by the social
security determination.”

Horton v. Prudential Ins. Co. of

America, No. 02–30439, 2002 WL 31415104, *3 (5th Cir. Oct. 8,
2011).

See also Schexnayder, 600 F.3d at 471 n.3 (“We do not

require Hartford to give any particular weight to the contrary
findings [Social Security Administration award]; indeed, Hartford
could have simply acknowledged the award and concluded that, based
on the medical evidence before it, the evidence supporting denial
was more credible.”).

In its initial denial of her claim for

long-term disability benefits on December 19, 2014, Prudential
acknowledged that Taylor had been approved for Social Security
disability benefits but explained that this did not change its
view of the claim as SSA had made its determination based on the
information available at the time of its decision on February 22,
2013, whereas Prudential’s decision, nearly two years later, was
based on additional information that was unavailable to the SSA,
including the results of the October 2014 IME.
20

In the court’s

opinion, under the circumstances, Prudential’s decision was
neither procedurally unreasonable nor an abuse of discretion
merely because it was contrary to the determination of the SSA.
See Lowery v. McElroy Metal Mill, Inc., No. CIV. A. 11-1491, 2013
WL 1197234, at *9 (W.D. La. Mar. 25, 2013).5
Taylor contends Prudential’s use of Dr. Blount’s report as a
basis for denial of her claim was “misguided” inasmuch as Dr.
Blount did not disagree with the restrictions and limitations
imposed by Dr. Vohra or any of her treating physicians.

On the

contrary, he agreed with and deferred to the restrictions and
limitations on physical activities advised by Dr. Vohra.

She

contends that Dr. Blount’s report is at best “neutral” and does
not provide clear evidence to support Prudential’s denial of
benefits.

5

Notably, SSA determined that Dr. Vohra’s opinion, as
expressed in the August 2012 Medical Source Statement, was
entitled to controlling weight. While Social Security regulations
require that opinions of a claimant’s treating physician be
accorded special weight, no such rule applies to disability
determinations under ERISA. Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 825, 123 S. Ct. 1965, 1967, 155 L. Ed. 2d 1034
(2003) (“We hold that plan administrators are not obliged to
accord special deference to the opinions of treating
physicians.”). And, while Prudential did not directly address Dr.
Vohra’s Medical Source Statement in any of its denial letters, its
final denial letter did address Dr. Stokes’ vocational assessment,
which, like the Social Security decision, relied on the same
Medical Source Statement. Prudential wrote that Dr. Stokes’
assessment was based on the opinions of her treating providers who
were “advocating for her” but whose clinical documentation did not
support the limitations on her occupational functioning indicated.
21

Dr. Blount’s opinion, based on his review of the medical
records and the 2011 FCE and on his examination of Taylor, is
briefly summarized:

She has diagnoses of multiple conditions and

a history of previous back surgeries; the condition causing the
symptoms she was experiencing at the time of the IME was likely
fibromyalgia; her presentation was “completely consistent” with
fibromyalgia and other potential causes of her symptoms had been
ruled out; fibromyalgia, as a condition, does not have specific
limitations or restrictions, rather, the patient’s tolerance of
her symptoms is what determines her limitations or restrictions;
he had limited experience with Taylor, having seen her only once
and for a short time and therefore would not offer formal
restrictions or limitations; her treating physicians had given her
restrictions and limitations and requested that she be given light
duty status; the 2011 FCE concluded she could have light-duty
status; and he agreed with the FCE and her treating physicians
that she should be able to perform light-duty work.
This is not a “neutral” report.

Dr. Blount concluded that

Taylor “should be able to perform light duty work,” at least as
the 2011 FCE defined or described the concept of “light duty.”

He

agreed with her treating physicians that she should not be
required to “climb ladders, ropes, and scaffolds given her balance
issues ... and medications...”, and agreed, implicitly, with the
limitations noted in the FCE; but most significantly, he agreed
22

with her treating providers that she could work, albeit with
limitations.
This was not an unreasonable conclusion, nor was it
unreasonable for Prudential to rely on Dr. Blount’s opinion.

The

2011 FCE report concluded that Taylor was able to perform light
duty work.

On August 8, 2011, shortly following the FCE, Dr.

Vohra noted that the FCE limitations placed her at a “very light
level of work,” and he restricted Taylor’s physical activities to
only occasionally doing the following:

lifting floor to waist 15

pounds; lifting waist to crown 10 pounds; overhead work, forward
bending and stooping.

In a September 15, 2011 treatment note, he

wrote that he “concur[red] with the restrictions as put forth in
the functional capacity evaluation, which precludes her from her
regular occupation.”

Dr. James Hensarling, who treated Taylor for

fibromyalgia, also expressed agreement with the results of the
FCE.

On August 10, Dr. Massie Headley, who treated Taylor for

fibromyalgia, prescribed the same restrictions as Dr. Vohra; and
in a September 8, 2011 letter, Dr. Headley, citing the results of
the FCE and the recent restrictions he and Dr. Vohra had ordered,
agreed that Taylor could not perform the duties of her job at
Wrigley.

However, the limitations prescribed by Dr. Vohra and Dr.

Headley did not preclude Taylor from performing work altogether
but rather limited her to light, very light or sedentary work –
which is precisely what Prudential concluded she was capable of
performing.

23

The court does recognize that Dr. Vohra’s August 2012 Medical
Source Statement, which he provided in connection with Taylor’s
claim for Social Security disability benefits, indicated
substantial limitations on Taylor’s functional capacity.6

However,

notwithstanding the finding of the SSA to the contrary, it is
evident that some of the limitations he identified – indeed, the
most drastic ones – were not reasonably supported by the medical
record.

For example, the court has reviewed the records of

Taylor’s visits with Dr. Vohra during the relevant period and
cannot find any reasonable basis for a conclusion that she was
limited, much less severely limited, in the use of her arms, hands
and fingers.

Further, the court notes that while Dr. Vohra

indicated in the Medical Source Statement that she could stand or
walk for less than two hours in an eight-hour workday, eleven
months earlier, he noted no limitation in her ability to stand or
walk, just as the FCE indicated no such limitation.

6

There is

It is unclear whether a copy of this document was
provided to Dr. Blount as part of the IME. Given the substantial
limitations noted in the document – substantially more limiting
than those noted in the FCE or previously recognized by Dr. Vohra
– and given Dr. Blount’s failure to address these limitations – it
might be reasonably inferred that Dr. Blount was not provided the
document. If the court were to assume for the sake of argument
that it was not provided for his review and were to further assume
it was a relevant medical record that should have been provided,
the court would find procedural unreasonableness. However, that
finding would add little, if any weight, to the conflict of
interest because in the court’s opinion, the document is not well
supported by Dr. Vohra’s medical records (notwithstanding SSA’s
contrary finding). Rather, the Medical Source Statement is more
in the nature of Dr. Vohra’s advocating for his patient, as
Prudential implicitly found.
24

nothing in his or any of the medical records to suggest such a
precipitous decline in her condition during the intervening eleven
months as would have this kind of detrimental impact on her
ability to stand or walk.
Taylor’s arguments that she was wrongly denied benefits are
based in no small part on Dr. Vohra’s Medical Source Statement –
or rather on Dr. Stokes’ vocation assessment, which is in turn
based on the limitations identified in this Medical Source
Statement.

Citing the restrictions noted in the Medical Source

Statement, she argues that Prudential’s vocational assessment
“does not fairly address the combination of limitations and
restrictions placed on Ms. Taylor by her treating physicians,
which are addressed in the report of ... Dr. Stokes.”

In the

court’s opinion, however, Prudential did not abuse its discretion
in disregarding Dr. Vohra’s Medical Source Statement as
unsupported by the medical record.
Taylor further argues that Prudential’s reliance on the
records reviews performed by Dr. Parrillo and Dr. Manion to
support its denial was unreasonable and an abuse of discretion.
It was not unreasonable for Prudential to seek independent review
of Taylor’s medical records.7

However, it is apparent that both of

these reviewers mischaracterized and/or disregarded the FCE, Dr.
Blount’s IME report and certain portions of the medical records to

7

There is nothing to suggest that either reviewer has any
record of bias.
25

arrive at the conclusion that Taylor either does not suffer from
fibromyalgia or does not have any functional limitations as a
result of that (or any other condition).8

The court would not

hesitate to find that reliance on such conclusions as the basis
for denial of benefits was an abuse of discretion.

However, in

denying her claim for benefits, Prudential did not dispute
Taylor’s diagnoses.

It specifically accepted that she had

multiple diagnoses, including fibromyalgia.

Moreover, it did not

find that she had no consequent physical limitations.

Rather, it

credited the limitations identified in the FCE and found that she
could perform only sedentary work.

In the court’s opinion, this

was not an abuse of discretion.
Taylor objects that Prudential’s vocational assessment is
flawed and does not support Prudential’s position that she does
not meet the Plan’s definition of disability because the positions
it identified are hourly, not salaried positions.

Prudential’s

vocational assessment identified alternative sedentary positions
in which Taylor could earn a minimum of $15.63 per hour.

Under

the plan, a claimant is disabled under the “gainful occupation”
standard if she is not reasonably fitted by education, training or
experience for any “gainful occupation.”

“Gainful occupation” is

defined as an occupation in which she could be expected to earn at

8

Both reviewers clearly opined that Taylor has no
restrictions or limitations from any condition. This is obviously
inconsistent with the medical record. Given their phrasing, it is
not as clear whether either or both purported to opine that she
did not suffer from fibromyalgia.
26

least 60% of her earnings from her regular occupation.

Prudential

arrived at the $15.63 per hour figure by converting Taylor’s
annual salary at Wrigley to an equivalent hourly wage.
Prudential correctly points out that this is not inconsistent with
the Plan’s definition of “gainful occupation,” which does not
require that a salaried employee be found disabled only if there
is no other salaried occupation in which she could earn at least
60% of her previous earnings.

Taylor’s position is thus rejected.

Conclusion
Based on all of the foregoing, it is ordered that
Prudential’s motion for summary judgment is granted, and Taylor’s
motion for summary judgment and to vacate termination and denial
of long term disability benefits is denied.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 11th day of July, 2017.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

27